I've only had chance to skim-read it all so far, but my initial thoughts are as follows:

The new guidance incorporates some of the more worrying elements of last year's draft and is really only a slightly mitigated version of the draft. In reality this will lead to few changes for home educators who live under the more reasonable local authorities and probably more hassle for all of the others - in the short term. See my next point for expectations over the longer term!

Compulsory registration, even though it is supposed to "function only as a list" and "not change LAs' powers" will, I fear, be ratcheted up in a period of years back to the kind of licensing scheme proposed by Graham Badman ten years ago. The consultation document already talks about allowing for "changes in the scheme in the light of experience".

The guidance (active from today onwards) sets out the ultimate threat of Care Orders we saw in last year's draft, which is unnecessarily draconian, authoritarian and traumatising. The kind of mentality that deems this kind of harsh treatment of families to be in any way appropriate is beyond my understanding.

I feel saddened by this turn of events, for home educating families thoughout England who will be affected by it and for my own family. It's depressing to think that my children will probably not be able to offer their children the same kind of wonderful childhood of exploration and adventure that they themselves have enjoyed. Being able to help them follow their interests and nurture their curiosity has been an absolute joy and a privilege and one that I would wish for any other parent who wanted it, in the absence of this government-prescribed mistrust and interference from officials.

What can we do now?

Personally I'm not in a mad rush to do anything, because experience teaches me that such events need time to be assimilated and processed through my mind and also through our on- and off-line communities and groups. We have three months to reply to the consultation, but I hope as many home educators and their friends, families and supporters as possible respond to say we don't want a compulsory register. The new guidance needs to be taken apart to see if the worst parts of it can still be challenged and many conversations and meetings will take place in the next few weeks as we try to work everything out and adapt as best as we can to the new situation.

Section 436A instructs local authorities to find children who are missing education. It is not intended to instruct local authorities to check the provision of all home educators, whose children are plainly not missing education. The statutory guidance it spawns does not instruct officers to check the provision of home educated families under this section, and it never has. In fact, the original version of this guidance included this paragraph on the subject:

"If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority’s database and no further action should be taken unless there is cause for concern about the child’s safety and welfare."

In 2011, Ian Dowty QC was asked to advise Lancashire home educators who were opposing new local policy based on Section 436A being misinterpreted in the same way as this new national draft guidance. His advice included the following:

It seems to me that Lancashire is attempting to put in place an assessment system which is based upon a misinterpretation of s436A and the statutory guidance issued on it so that they create a different regime for a child that they decide is “missing education”. In assessing this, it would appear that Lancashire believes it can insist on using greater powers than the law in fact permits to them.

This misinterpretation of 436A is the most important element of the draft guidance. If we let it go without properly challenging it, we will be set back 12 years politically, to the time before the current guidance was published, and that would only be the start of a series of changes that would lead straight back to where the draft currently wants to go and further. It should therefore be the key focus of our objections to the new draft, because anything else is effectively fiddling around the edges. We do not need to roll over on it; we are in a strong position.

Thursday, May 03, 2018

Sections 436A and 437

Duty of parents to secure education of children of compulsory school age.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

And if it looks like we might not be doing this, Section 437 tells local authorities:

(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.

(2) That period shall not be less than 15 days beginning with the day on which the notice is served.

(3) If—

(a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and

(b) in the opinion of the authority it is expedient that the child should attend school,

the authority shall serve on the parent an order (referred to in this Act as a “school attendance order”), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order.

Section 437 works perfectly well to ensure that our Section 7 duty as parents is carried out while at the same time protecting our Article 8 right to respect for our private and family life, home and correspondence. Crucially, it enables us as parents to decide how Section 7 applies for our own individual children, for each of whom 'suitable' means something different, which is best known to ourselves who live with them and have known them for all of their lives. Section 437 does this very carefully, by ensuring that the local authority's role in 'otherwise' education remains non-intrusive until and unless something makes them think the education might not be suitable.

So how (wail some local authorities) can we know that there is an appearance that education might not look suitable unless we can check everyone's education all of the time?

The answer is that there are many ways in which such an appearance can and does often arise. Police or social work reports being the main two serious sources of concerns. If a family is seriously struggling with living in a reasonable healthy and law abiding way then this would be a good reason to doubt the educational provision and get it checked. Anyone else who is worried about a child's educational provision is at liberty to raise a concern with the local authority who would then approach the family for information about the provision to check that it looked suitable. (Note that this information only needs to be such as would convince a reasonable person - i.e. not an education professional - on the balance of probabilities, because if it went to court it would be a civil and not a criminal "beyond all reasonable doubt" case.)

In 2006, Section 436A was introduced via the Education and Skills Act:

Children not receiving suitable education

436A Duty to make arrangements to identify children not receiving education

(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a) are not registered pupils at a school, and

(b) are not receiving suitable education otherwise than at a school.

(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3) In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.”

At the time, only the heads of the main home education organisations were consulted by government so this section reached the statute books without any of the rest of us being warned or given the chance to protest. The people who were informed were told that Section 436A was not intended to target home education.

... were originally conceived to do two different things. I was involved with discussions when the first draft of that was made, of the Children Missing Education guidance, and the civil servants who we were dealing with assured us that this was not something which was being designed to entrap home educators. They assured us that the whole point of that exercise - giving the statutory guidance on section 436A - was to find children who had completely slipped through the net who were not receiving any education at all. It was not designed to target home educators in any way. And the first version of it actually said explicitly that this guidance does not apply to children who are educated at home."

The draft guidance for local authorities currently being consulted on by the government tries to turn this situation on its head, and use Section 436A to check the provision of every home educated child rather than only the ones about whom concerns have been raised, as Section 437 does.

The problems with this approach are as follows:

Section 7 gives parents the job of causing their children to receive suitable education, not local authorities. In order to ensure the suitability of the provision they must cause their children to receive, parents must be the arbiters of it - until and unless there are concerns that would create a Section 437 'appearance'. If local authorities are checking everyone's provision against the elements set out in Section 9.4 of the draft, for example, then parents will no longer be the arbiters of what constitutes 'suitable provision' in normal circumstances and will be unable to comply with their Section 7 duty.

The funding required for local authorities to thoroughly check the provision of every home educated child in the country will be both astronomical and unjustified.

The Article 8 right to respect for private and family life, home and correspondence will be breached - again, unnecessarily because the absence of specific concerns about the provision indicate that it does not need to be assessed.

Section 436A has been used successfully for its original purpose of locating those children for whom no education provision is being made whatsoever for the past twelve years since it was introduced. Home educating parents, on being asked under that section what provision has been made, have only needed to say: "home education" for this to have been accepted - unless and until specific concerns have been raised to give rise to a Section 437 'appearance' that the provision might not be suitable. This has freed up local authority resources for those families who have been in obvious need of more intervention instead of wasting them on unnecessary blanket checks.

Home educators in England who are affected by this consultation (Wales and Scotland are not) will have to consider their position en masse if this newly proposed misinterpretation of Section 436A taken forward beyond the consultation.

They stretch the law to try to make it mean something completely different to the way it has been for decades in respect of home education. The new draft guidance for local authorities bares little resemblance to the existing Elective Home Education Guidelines for Local Authorities. In future posts I'll hopefully be setting out the problems that will be caused by each instance of this and also the conflicts and incompatabilities with other laws and regulations it gives rise to.

3. How can we respond to the consultation?

The closing date is 2nd July 2018, so we have nearly 12 weeks in which to do so. I will probably put my response in during the final week, having taken as much time as possible to consider all of the many points arising. Some people have responded already but I think that's premature, unless they're thinking of sending additions when the various discussions have finished towards the end of the time period.

4. What's likely to happen with Lord Soley's bill now?

Many of us have been saying for a long time that we don't expect that bill to receive debating time in the House of Commons, meaning it will not be able to proceed much beyond committee stage and become statute.

5. Where else can I read about this or discuss this with other home educators?

The new HE Byte is a good place to keep up with news and updates. A Facebook group has also been set up as a discussion hub. If you want to join this, please email or Facebook message me.

Thursday, February 08, 2018

Baroness Cavendish's contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords on 24th November, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Baroness Cavendish's contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

Baroness Cavendish of Little Venice: My Lords, I welcome the opportunity to speak in this important debate. I welcome the noble Lord, Lord Agnew, who has such a long-standing commitment to education. I hope he will be able to move this forward.

As the noble Lord, Lord Soley, said, there is a growing consensus that registering home-educated children is essential.

A "consensus" that so far seems to have been drawn by only one academic, several politicians and perhaps three dozen local authority officers. As ever the opinions of home educating parents or, more poignantly, "the child's voice" have not yet been sought, but the forthcoming public consultation will open the floodgates to those.

That is a change,

It is not. I have been interested in the political approach towards this niche activity for over twenty years now, and the numbers of those wishing to tighten its regulations remain roughly the same.

and it relates partly to the growing numbers; we do not know what the numbers are, but we know from local authorities that they are growing.

I'd like to invite Lady Cavendish to reconsider her words here. We don't know what the numbers are, but we know that they are growing? That rather suggests that we do have a very good idea what the numbers are. In fact, we know exactly the numbers of all of those whose local authorities know they are being home educated, which is every child who has been deregistered from a school, plus every child whose home educated status has been reported to their local authority under Section 436A of the Education Act. A child's home educated status can be reported by doctors, dentists, shopkeepers, neighbours, relatives, swimming pool attendants - in fact, anyone to whose attention it comes. This results in the vast majority of home educated children's status being known to their local authorities, the remaining few of which will be mopped up by Section 436A in the near future, or reach maturity. This moral panic about the numbers home educating is just that - or an excuse to try to impose further measures of oversight than mere compulsory registration can afford, in future years in the statutory guidelines.

It is important to understand, as previous speakers have said, that home education is no longer the preserve of a small group of bohemian parents or parents whose children flourish better at home because they have experienced bullying or have special educational needs that, as the noble Lord, Lord Addington, said, are not necessarily being adequately met. If I may say so, the latter is a separate issue but it is still very important.

The so-called bohemian parents, or 'philosophical home educators' as they now seem to be called, are the group that tends to home educate from the very beginning, whose children have usually never attended school. This seems to be the group causing the least concern in this moral panic, and yet this is the only group whose children's educational status might still be not known to their local authority.

That is no longer what home education is simply about, and a lot of people are somewhat out of date in imagining it as such.

What? Home education is about educating children other than at school, as per Section 7 of the Education Act. There is so much spinning in this debate, everyone seems to be dizzy.

Precisely as the noble Baroness, Lady Morris, has just outlined, because the good parents are quite vocal and articulate it is easy to overlook that there are now a substantial number of parents whose desire is to isolate their children from mainstream society and from liberal British values. As was referred to earlier, there are also parents who are set on various forms of abuse, which is simply horrific, but the other group is probably—hopefully—larger.

I speak as someone who, with the Cabinet Secretary, commissioned the Louise Casey review of integration and opportunity. Among many other things, that review expressed deep concern about the effect of home education on some children who are already almost excluded from society and will face much greater problems and lack of opportunity in future. I was also involved in commissioning the Alan Wood review of local safeguarding children boards, which, again as previously described, expressed the important point that there is no way for multiple ​agencies to get together to share this information and no way for local authorities to assess the very real risk to some of these children. There is a lacuna in the law, and we are effectively sabotaging local authorities’ duty to safeguard children by not closing this loophole.

You also speak as someone, Baroness Cavendish, who is a former aide to Marjorie Scardino when she was the profit-tripling CEO of Pearsons PLC, the digital education giant whose influence on education policy has raised serious concerns. A growing number of home educators is also a growing potentially captive market if it is regulated in a certain way - it transpired that there were digital education providers mysteriously involved in the Badman Review, so we are naturally suspicious about anyone showing an interest in our regulations who has been connected with such companies. Not that I'm suggesting Baroness Cavendish is still connected with Pearson PLC in any way: I do not know whether she is or not.

It is an outrage that the Government do not know how many children in this country are being home educated. As previous speakers have said, we have some impression of the number of children who are being withdrawn, but we have no idea how many children have never been registered. I recently did an interview for Radio 4 with Ofsted’s chief operating officer. He made it very clear that he believes that there may be as many as 50,000 children in this situation. There are tens of thousands of children whom we do not know about. That does not mean that they are all at risk, but it is something that surely we need to know.

The other issue that concerns me deeply is the correlation between home-educated children and the growth of unregistered out-of-school settings. It is easy to imagine home-educated children sitting around the kitchen table or in a cosy sitting room. The reality is that some of them are not at home at all: they are going out every day to tuition centres, often Islamic tuition centres, some of which are legal, some of which are illegal, and very few of which are monitored. To give one example, the director of the Siddeeq Academy in Whitechapel was one of nine people arrested by the Metropolitan Police counterterrorism squad a few years ago. The academy has now been closed, but if you talk to the very small unit at Ofsted which is trying to identify and close down these schools, it will openly tell you that it is very difficult to identify their number. Registration would be the absolute bedrock that we need to enable the system at least to identify and follow those children.

The noble Lord, Lord Soley, understandably said that some of the clauses — about emotional development and so on — are unrealistic. It is absolutely right that we do not create a monstrous bureaucracy around this and that light-touch regulation is essential.

As explained above, light touch regulation won't go anywhere near solving most of the alleged problems this moral panic has raised. If this bill ever did make it into legislation it would be an enabling clause, which would give rise to ever stringent annual revisions in the associated statutory guidance.

But if the Minister is willing to look at this properly he will need to consider to what extent we are asking social workers to fulfil their duty under safeguarding rules, which they would do and should be allowed to do anyway, and to what extent we also want to involve Ofsted, which would be very different. That would be an investigation and analysis of the education that children are receiving, and that is an open question.

This paragraph is quite hard to decipher, but I think she might be saying that Ofsted should be involved in investigating and analysing the education we're giving to our children. If Ofsted also wants this, then that might explain their own contribution to the moral panic.

Personally, I think that registering the children is essential, and I would hate anything to derail the possibility of achieving that. Perhaps it might be left to another time.

What, Ofted inspecting our provision? Yes of course, it would go into the updated guidance if the legislation ever changed, which does not look likely. Assuming Ofsted beat the local authorities to the job - a battle which I suspect will be left to another time: quite some years hence.

I hope that the Government will now take this seriously. It is time to act. There were a huge number of interactions between the Government and the previous and current Chief Inspectors of Education on this issue. It is not a new issue, but it is now much clearer that it is a real problem and I hope that the Government will act.

One carefully managed and orchestrated moral panic does not a real problem make.

Wednesday, January 17, 2018

Baroness Morris's contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Baroness Morris's contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

Baroness Morris of Yardley: My Lords, I also welcome the Bill that has been put forward by my noble friend Lord Soley, and congratulate him on the work that he has done. I also want at the start of the ​debate want to recognise the work done by Graham Badman some time ago. I suspect that if Graham Badman’s report, which was about to be put into effect in 2010, had been allowed to come into force, we would have already addressed these issues. I know my noble friend Lord Soley said he tried to speak to Graham Badman and build on the work that he has done.

The noble Lord, Lord Baker, was absolutely right. When he said he thought back to his time in office and what he did about home education, that made me think back to my own time in office. In truth, we did not do much either.

As Secretary of State for Education and Skills from only 8th June 2001 until 24th October 2002, I don't think she had chance to do anything at all, but luckily no action needed taking on this issue.

At that time, the principle of a parent’s right to educate their child other than at school trumped everything else, but times were different. It is not about justifying whether that was right or wrong, but things have changed since the noble Lord, Lord Baker, and I were in office. In two chief respects, the context now is different.

First, as a society, we do more now to accept our joint responsibility for the well-being and protection of every child. We have always thought we do that, but so many cases in recent years have shown that we have not always done it. That is at the top of everyone’s agenda. The obligation that we owe as adults, as a society and as policymakers to every child to do what we can to protect their well-being is paramount.

Instead of focusing their time and efforts into strengthening local authority's responses in cases where the current regulations are often not correctly acted upon, this group of people is instead choosing to cause upset, distress and educational disruption by attempting to compel every home educated child to be monitored unnecessarily. I suppose it's easier to drink tea and eat home made cakes every year in a typical home educator's sitting room than it is to face down the proprietor of an illegal school and force it to close, whilst still pretending to be "doing something", but the former causes unnecessary stress to families and unnecessary expense for the state, while the second directly addresses the issue of people who are actually breaking the law for their own profit.

Secondly, we accept more now the right of the child to have an education, which may sometimes trump the right of parents to decide that their child should be educated in a particular way.

Yes it might, and when every school child has his or her educational preference met, then we can begin to ask the home educated children too. My own children are regularly offered school or other provisions by the way, as are most home educated children I know. Strangely, they are not keen to uptake the opportunity! The younger ones have never tried school but they hear enough about it from some of their school-attending friends to know that it is best avoided and I've heard hundreds of school-related horror stories but am only aware of two or three home educating ones, about which the local authorities did not take the correct action, incidentally.

The third factor in play here is that if you are the Minister, you can claim that there is guidance of a sort that deals with this issue. However, the guidance was published a decade ago by two Ministers who are now sitting in this House and relies on a trick that often happens in government. It says that they have the right to check that every child is well and getting a decent education, but then denies them every power that they would need to carry out that job. You can tick the box and say that there is guidance, but the bottom line is that you say to a local authority that if it suspects anything is wrong, it must do something about it, but you deny it the right to collect the information, the right to go into the home, the right to ask questions, the right to speak to the child.

The level of misunderstanding inherent in this paragraph is quite astounding. Firstly, the guidance does not say local authority officers have the power to check every child is well and getting a decent education and nor should it. The safeguarding duty set out in law is a passive one, not an active one and this is for two very good reasons: to target resources on the children who really need it; and to allow a degree of trust and freedom for innocent people about whom there are no concerns. The first is important to avoid the needle in the haystack problem as well as protecting the public purse and the second to preserve the presumption of innocence.

Nor does the guidance deny local authorities "every power" to check on the safety of children and the quality of their education provision. Properly reflecting the law as it does, it explains that if there are concerns, then thorough checks can and should be made. This is why we have Section 437 of the Education Act and sections 17 and 47 of the Children Act. Baroness Morris is either scandalously ignorant of such provisos in law and guidance, or this part of her contribution to this debate is alarmist in the extreme. As for the argument that says, how can local authorities know about concerns before they're reported to them? The answer is: they can not, and nor should they try to because such a change would lead to innocent people being constantly checked without end for crimes they have not committed, just in case they have done something wrong. The infringment this would cause on our Article 8 privacy would be unacceptable and damaging for all concerned.

Times have changed and it is quite clear that there is a problem to be solved.

No. What is quite clear is that those who would have us more regulated for philosophical or political reasons will use every case they can to try to prove that we need to be more regulated because we somehow present an increased danger to our children than school-using parents when we statistically do not.

People will say we do not know the extent of the problem, because we have not taken the powers to collect the information.

People who, for reasons of politics or philosophy, disapprove of home education will apparently say anything that suits their argument, and the more emotive the issue the more likely they are to try to make use of it to achieve their ends.

I thought about the groups that could be included in this, and part of the problem is that, understandably and rightly, the most vocal group is that of parents who do the job well and who for whatever reason have decided that the type of education they want their child to have is better delivered outside the formal school structure. Often the children are very gifted or have great special educational needs, but the way the parent wants to structure that child’s learning is one that the system of education has not been able to deliver for them, or they have been dissatisfied with the provision of education they have had. They are the articulate group and the ones who complain whenever we try to address this ​issue. I do not want their rights threatened — they are doing a good job, although it is not what I would choose for my child, and I absolutely respect their right to do that. But their voice should not take away from our obligation to protect children who are not in that group.

I am perplexed about the apparent absence of logic in this point and will restrict myself to repeating patiently yet again: the obligation to protect children who might be in need of services is amply covered by Section 17 of the Children Act. The obligation to protect children who might be at risk from significant harm is amply covered by Section 47 of the Children Act, and the obligation to protect children about whose educational provision there are concerns is amply covered by Section 437 of the Education Act. What more do these people want? CCTV in our homes?

Another group being educated other than at school are those who are deliberately hidden from society and are mistreated and abused as a result. They are not supported to flourish and thrive in society and are maybe, as my noble friend Lord Soley said, radicalised, or brought up and educated in a way that does not give them the skills, the attitude or the social skills to thrive as citizens.

There are laws to protect this group, as listed above. They should be used properly in order to fully help those who need to be helped.

One growing group that absolutely appals me are those parents who feel obliged to educate their child at home because they have been excluded from school and are advised by the school that the best thing would be to educate them other than at school. This is not a deliberate choice on the parents’ part, but a set of circumstances brought about by a school that wishes to exclude the child, which leads to the child being educated at home. So there is a linkage, and I suspect the noble Baroness, Lady Morgan, might say something about this, between unregulated schools and children being educated at home, which I had not clocked until the previous HMCI spoke more about it last year.

Section 13 of the Education Act confers a duty on local authorities to: "contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, [and secondary education] are available to meet the needs of the population of their area.". Are we just completely overlooking the Education Act nowadays, or ought we as a nation, particularly our local authorities, to at least consider adhering to the duties it sets out? It should go without saying that if a school is off-rolling less preferred pupils then that school is not meeting the needs of the population.

The principle in the Bill that we need to know more about these children — who and where they are and why they are not in school — has to be right, and I very much support the aspect of the Bill that would do that. If we want to collect those figures, we must have a way of doing so. If we want to safeguard the well-being of the child, we have to know about them and talk to them. We have to know who is educating them and where they are being educated. We have to check what is happening to them. But those provisions in the Bill have to be right.

No, because it would not stop with just knowing which children were being home educated. The real end goal of all of this obsessive tracking and tracing is to monitor the educational provision and to ban it wherever possible. This is the only conclusion we can reach when the protective laws are already so clear and being so blatantly ignored in so many cases.

Where the Bill is also right but far more contentious, and I was pleased that my noble friend Lord Soley indicated that in his opening comments, is on where we say to society, “Thou shan’t make judgments about the quality of education being delivered”. I think we should make some judgments but I do not pretend it will be easy. This is the most difficult part of the Bill. In the interests of every child and of safeguarding a child’s right to education — a child’s right to education is a United Nations provision — I think there are things that we as citizens can agree on: a child should be literate and numerate and have access to physical activity, the arts, culture, science and all those wondrous things. In truth, though, while the state is very good at inspecting within a very regulated framework, it is less good at exercising judgment and discretion where people are not absolutely following that framework and regulation but are nevertheless doing a decent job. Most of us have talked to teachers and head teachers who have complained about the present inspection framework, and I can well imagine how nervous some parents are that they are going to have that conversation with some sort of regulator.

Yes. You can see already how it begins: "A child should be literate and numerate and have access to physical activity, the arts, culture, science and all those wondrous things." Statements that seem on the face of it to be perfectly reasonable and appropriate and applicable to absolutely every child, but which a little more consideration shows are not. Parents know their individual children better than local authority officers can and decisions about the provision should be made by parents, with local authority officers only intervening where it appears that this might not be suitable. The law on this is very powerfully and subtly framed in the negative, to afford every freedom to the parent to choose the correct provision according to her knowledge of the child's educational needs. It does not need to be changed.

I say to my noble friend Lord Soley, the proposer of the Bill, that he was absolutely right to acknowledge that that is an issue, but it is not one that we should ​not take on. It is just one where we have to be sensitive, and I hope that in considering the implementation of the Bill we will talk to those parents who are doing a good job of educating their children and do not want to have to change too much. We should make sure we can accommodate their needs. To ask a state regulation system to accommodate innovation and quirkiness almost does not go together as a request, but somehow we have to get this right.

The law as it stands already accommodates our needs while at the same time protecting those children who are in need, at risk, or whose education might not be suitable. It just needs to be properly implemented. As Baroness Morris seems to realise on some level, improving it is no easy matter and any change - in accordance with the rule of good intentions and unintended consequences - is likely to cause more problems than it solves.

I welcome the Bill. I congratulate my noble friend on bringing it to the House; he has a long record of taking an interest in this issue. Primarily, it will set us on course to deliver more effectively our obligation to protect every child and ensure that every child has access to a good education. We should tread warily, however, and fear that we may damage some good provision, but these problems are no greater than those we face in implementing any legislation or bringing in a policy that we know at its heart is good. I hope the Bill will get a Second Reading and I look forward to the debates that might ensue.

It will damage a lot of good provision. This is not a risk people should take with children and their education. Laws are already in place to address the problems raised and sufficient arguments have still not been made to properly dispute this fact.

Tuesday, December 12, 2017

Lord Addington's contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Lord Addington's contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

Lord Addington: My Lords, the noble Lord, Lord Baker, has the habit of stealing everybody else’s thunder — but I have never seen him take out the entire Government Whips Office before. There we are: we live and we learn.

The Bill is very interesting and undoubtedly the best thing about it, and something that must be carried on, in the heading of Clause 1: “Duty of local authorities to monitor children receiving elective home education”. The noble Lord, Lord Soley, has effectively put his finger on something of a black hole. We do not know how many children are in this group. We do not know what is happening to them and that is really where we should have concern. Indeed, if only a one-clause Bill comes out of this with only that and some form of basic inspection or chasing up in it, we will have done a very good service to the entire education structure.

I'm struggling to know where to start with this, so I will start at the end. Home educated children are not generally thought of as being part of the entire education structure, which exists for parents to optionally outsource their Section 7 duty to cause their children to receive an efficient full-time education, which is suitable to their age, ability, aptitude and any special educational needs they may have. This outsourcing by parents is what enables the existence of an 'entire education structure'. Those of us who choose not to outsource our Section 7 (and incidentally, instinctive parenting) duties should not be inspected where there is no specific cause for concern.

I say that because the minute you start looking into something you suddenly find something that affects the little world that I come from, with my interests as a dyslexic and president of the British Dyslexia Association and my business interests in assistive technology.

That's interesting to me personally, because one of my now-adult sons was deregistered from primary school due to severe dyslexia. In desperation, after the school consistently punished him for not being able to spell etc, we got a private, detailed diagnosis - which the school then refused to read or even acknowledge. Home education improved his situation immeasurably.

In relation to Clause 2(2) and monitoring and support for education — that is, reading, writing and numeracy — it has to be said that the general provision within the educational establishment for supporting those with special educational needs is patchy at best.

Yes, I'd heard very little had changed since our well-documented problems over twenty years ago. I wrote to the Education Secretary amongst others to explain our experience and it seems to have changed nothing. I know we weren't the only ones.

The framework for the core content of initial teacher training was put out in July last year. Section 5 mentions for the first time that a few of the most common SENDs should be included in teacher training. It is that tenuous. If you have an institution such as this, how in hell is it going to monitor that you are doing this properly if you have taken your child out of the education system because it is not doing it?

Bit of a convoluted question, perhaps based on a misunderstanding. Deregistered children are known to their local authorities because the headteacher who received the deregistration letter is legally obliged to notify the local authority of it. Also, is Lord Addington suggesting that parents whose children's special educational needs have been failed by the school system should then be subjected to extra checks in home education? Because the school let the child down, the parents should not be trusted? It's a perplexing idea.

Suddenly, with the best of ​intentions, the noble Lord, Lord Soley, has caught his toe in a bear trap. However, I am prepared to prise it open for him by saying that the monitoring of education, and some reference to it if he wants to keep it in there, would be better.

It seems like he is saying that very thing.

Now that we have good voice to text/text to voice technology, there is an argument about when you start using it for a child who is severely dyslexic — to go to what I know best. There is a huge argument there. “No, you must have spelling standards”. Let me give a personal example: my daughter’s spelling was better than mine when she was seven. A person who has anywhere near the degree of problem I have — very few do — is never going to learn to spell or write correctly, and the correct thing for them to do is to start using the very up-to-date technology that is creeping into everything now and is becoming more mainstream.

Yes, this is exactly my son's experience and conclusion. Home education has been perfect for him because it gave him full-time access to the latest technology that was unavailable to him in school.

You would not ask somebody in a wheelchair to complete a cross-country course, so you have to be careful about this. That is a traditional group, as the noble Lord, Lord Baker, said. We have both come across it; we have both met people who have taken their children out of those situations because the school cannot cope, will not cope, does not have the money or does not understand. It goes on and on. That group must be catered for in this because they are doing the state a service by providing relevant help. The noble Lord, Lord Soley, has acknowledged that. We have to make sure we take it into account.

Actually, they are doing their child a service - as well as complying with their own legal duty as the child's parent. If the available schooling is not suitable for the child's needs then the parent has little choice but to make her own arrangements. The 'catering' that should be provided by the state is a suitable school. If it cannot do this, what can it do? Nothing.

However, I agree with everything else that the noble Lord, Lord Baker, said. I suspect that we have been briefed by similar people because I have many of the same points—of course not made as well, but there we are.

The most interesting line from the whole debate, in my opinion, and the explanation for eleven pointlessly identikit contributions to it. Is this supposed to be democratic?

People are disappearing

They really are not. It is not an episode of Dr Who.

— I will come back to the point about special educational needs — into very substandard education.

As the noble Lord pointed out, children, too, have rights in education. Lots of arguments are going on about inclusion. I have always said that the child’s right to an education comes first.

Tell it to the schools, please.

We should bear that in mind. I hope that we will be able to bring this forward — but if you want to take a journey, you should start well. The first line of the Bill of the noble Lord, Lord Soley, is a very good start. If we can take that and develop it, we will be going down the right path.

The first line of the bill is: "A bill to make provision for local authorities to monitor the educational, physical and emotional development of children receiving elective home education; and for connected purposes." I think Lord Soley has changed his mind about it already, so Lord Addington may be disappointed.

I hope that the Minister, when he answers, will be able to let me know how we are progressing on initial teacher training. I have not given him any warning of this question, so a letter will be fine. I hope we will be able to go on about that so that we can get an understanding about how that core group, which used to dominate this market, is being dealt with in the current education system, and also get an idea of the thinking about people who are taking spurious steps and, particularly, about private schools which are operating under the cover of home education. In the future, we need to talk more about those two things that have come out of the Bill.

A core group which used to dominate this market....? What a telling phrase.

Wednesday, December 06, 2017

Lord Baker's contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Lord Baker's contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

Lord Baker of Dorking: My Lords, I warmly congratulate the noble Lord, Lord Soley, on devising the Bill and on securing a Second Reading and debate. Home education is an unknown part of the education system. A debate such as this allows a searchlight to be directed to what is a very clouded, obscure and unknown part of the education system. Very little is known about home education.

On the contrary: by those who practice it and their children, a great deal is known.

It is rather different from Victorian times, when home education was very strong indeed.

It is hardly weak now.

The only schools that taught beyond the age of 11 in those days were the grammar schools so, as noble Lords will know from Victorian biographies and memoirs, many middle-class families educated their children at home with the advice of the tutor. A tutor was often employed by them and often lived in the home. It was a career for many thousands of people in Victorian England.

And many of them home educated without the advice of a tutor. Nowadays, some families choose to use tutors and others do not, just as then.

Home education is not like that today at all. In my time it was very small. The only cases that ever came my way concerned special educational needs, where parents felt their children were not getting the proper attention in an ordinary school and they could not get into a specialist school, so they asked what they could do. There were also complaints about the curriculum. In those days there was no national curriculum. Every school could devise its own curriculum. If you had a good school you had a good curriculum, a mediocre school a mediocre curriculum and a poor school a poor curriculum. Some of the curriculums were so poor that parents decided they would do better if they educated their children privately. They were very small in numbers.

It was also very little known about and quite difficult to undertake without the Internet. Also, so few families were doing it one had to travel for many miles to arrange meet-ups and we needed things like phone trees to have any hope of maintaining a network between each other.

I quite agree that there should be a right for parents to withdraw their children. There might be cases where the children have been bullied at school and it has not been properly dealt with. Parents might be deeply offended by the teaching on a very sensitive matter and withdraw their children. I can understand such cases.

This is very good of Lord Baker, but in law - and in fact - our reasons are irrelevant.

Parents have rights, but children also have rights. Children have the right to a well-informed education that goes well beyond reading, writing and arithmetic. That is the first right. Their second right is that they can study in a community, however small or large, that is secure and safe, with safeguarding of their interests.

'...the atomisation of the interests of the child and the interests of the parents, setting the human rights of one in conflict with the human rights of the other is a peculiarly Western approach. Note in particular that whereas human rights may be conceived as privileging the rights of humans over the rights of States, this atomisation approach puts the State straight back in the picture as the arbiter of the dispute between the conflicted interests of parent and child.'

It is a dubious political tactic, which also completely overlooks the parents' vested interest in the long term future health and prosperity of their offspring.

Back to Lord Baker again:

Safeguarding is critical in education. If a school is found in an inspection not to have done the safeguarding of its pupils, it goes straight to special measures — it is as important as that.

Government inspections of schools began in 1837, "..to monitor the effectiveness of the grant.." which was being provided for the earliest state funded schools. Ofsted exists to check that public money for education is being properly spent.

I am not at all satisfied that there ​is proper safeguarding in the present arrangements for home-educated children.

No public money is being spent on home education, so there is no reason for checks to happen where no concerns have been expressed.

Home education is awfully difficult for a family.

Says the man who has done it? I suspect not.

In every family there has to be a breadwinner, so the breadwinner does not see the child for eight or nine hours a day and it is left to the other parent. It does not matter whether the breadwinner is male or female, the husband or the wife. So it is very challenging, particularly for secondary age children, to secure a really good education.

It can be, or it can be easy. Much depends on the child as well as the parent, and circumstances vary as widely as people's financial and working arrangements. Some couples both work part-time so there's always someone with the children and it's not always the same person. Some people have the traditional arrangement but many others work from home now with flexible hours, perhaps with self-employment. And what Lord Baker seems to not know is that many home educating parents make use of the many organised activities that are organised by home educators for home educators in their local area. These usually require the attendance of the parent to supervise their own child, so they are not alone with their children all day long and have the chance to mingle with other home educating parents while their children socialise and learn together. And even if they sometimes are alone together, in this age of the Internet both company and advice are never more than a click away.

What stage have we got to at the moment? There was an improvement in the Education (Pupil Registration) (England) (Amendment) Regulations 2016, which ensured that schools have a duty to report to the local authority the names of pupils who are withdrawn. That is quite a big step forward; at least we have the basis of a database, but that is about as far as it goes.

And Section 436A - added to the Education Act in 2007, if memory serves me correctly. This will eventually encompass most home educators.

There have been two reports recently on this problem—the Casey report and the Wood report. The Wood report made some very interesting recommendations on home education that have not really ever been mentioned by the Government. It said:

“They point to the fact that public agencies do not have the right to gather information on the children in such settings and have no way of assessing the level of risk children face. This issue is not covered in multi-agency arrangements” —

this is not only on the education side, but the social services side, the police and others —

“and it needs to be”.

It acknowledged that some parents co-operate very closely with the local authority while some do not. However, the report said:

“In both of these cases the local authority is not able to assess either the quality of education being received by the child or whether there are any safeguarding issues that require attention. This needs to be addressed urgently”.

The local authority is able to assess both the quality of education being received when it has concerns that this might not be suitableand any safeguarding issues that may need attention in carrying out "the functions conferred on them in their capacity as a local education authority" as per section 175 of the Education Act. This does not give them the power to do spot checks or otherwise force entry into the private family homes of people about whom they have no concerns, but it does give them the duty to take action when concerns are raised. The law is balanced perfectly well in this respect and applies to everyone equally.

There has been no comment from the Government on those recommendations in the Wood report, which is very disappointing.

The Wood Report's suggestion for a solution to the issues it raised about home education was: "New guidance should be provided which makes clear the responsibility of parents to ensure information about their child’s education is provided to the local authority.." Lord Agnew's assurance later in the debate that the government will carry out a consultation about this new guidance is obviously the response, to the section on home education at least. The new guidance cannot vary greatly from the current EHEGLA if it is to keep within the law as nothing much has changed since it was published, but should perhaps be updated now as it is ten years old this year.

As the noble Lord, Lord Soley, said, there is no real number of those who are in home education. The Guardian did a survey of local authorities and came up with a figure of about 30,000—17,000 of secondary school age and 13,000 primary. These are infinitely higher than any of the figures in the past—there is absolutely no doubt about that. It has become a really big issue and I do think that the Government can remain so ignorant about it as they are at the moment.

The UK's population is at its largest ever. We have at least ten million more people in the country now than we had in the 1980s, so numbers are bound to have increased even if other factors stayed the same. But they have not stayed the same, as I commented in my previous post in this series. Schools are a lot less relaxed and accommodating of children's individual needs, absolute full-time attendance is now required of all pupils and this is enforced by hefty fines and threats of parental imprisonment, which was not formerly the case. The evolution of the National Curriculum, league tables and SATS tests have all profoundly changed the nature of schooling in the UK since the 1980s and many families either do not like or cannot cope with the current regime, which seems to have lost all of its previous flexibility and creativity for addressing such problems. In the light of all of these changes, the rise in numbers of home educators is hardly surprising - and still, the increased numbers should make no difference to the regulations, which should be based on principles and not panic.

The Minister who is about to reply answered a Written Question as to how much the Government know about this and the answer was that they do not keep any record at all of home education. That is simply unacceptable.

I disagree. According to Section 7 of the Education Act it is for parents to cause their children to receive efficient, full-time education - not governments. If Section 7 made it a responsibility of governments to cause this to happen, then I would take Lord Baker's point. But as it is, parents are rightly trusted to carry out this function unless there is an appearance that it might not be the case.

However, the most devastating evidence of what is wrong comes from the letter that Sir Michael Wilshaw wrote to Nicky Morgan a little over a year ago, in 2016. He was looking to the unregulated schools that suddenly emerge in the background in large conurbations particularly. He said:

“In January, I recruited a team of seven experienced inspectors to work exclusively on this critical area of child safety. Since then, these inspectors, working closely with Department for Education (DfE) officials, have identified more than 100 suspected unregistered schools across the country”.

He goes on to say that the inspectors have already asked for seven to be closed, and I expect that he will ask for more. He said:

“The evidence that they have gathered so far during this short period firmly reinforces my belief that there are many more children hidden away from the view of the authorities in unregistered schools across the country than previously thought”.

Many of the parents of children in home education cannot cope, so they send them to the little school around the corner, which is unregistered.

If they are doing this and if the school is unsuitable or illegal, then according to current laws the school should be shut down and under section 437 of the Education Act the parents served with a School Attendance Order. As Lord Agnew said later in this debate, local authorities already have the tools with which to resolve these problems.

In the work that Sir Michael Wilshaw did examining these schools, he said that the accommodation and the buildings were usually totally inadequate and that staff and volunteers who were working in these schools,

“have not been properly checked or cleared to work with children”.

That is a fundamental need for every school. Every teacher and anybody who comes to work there, even on a temporary basis, has to be cleared. The non-teaching staff have to be cleared but nothing of that happened at all.

Is this a debate about schools, or home education? Lord Baker appears to have wandered quite a long way off topic at this point.

He went on to say:

“Evidence inspectors have gathered over recent weeks has also reaffirmed my belief that there is a clear link between the growth of unregistered schools and the steep rise in the number of children recorded as being home educated in England over the past few years”.

My explanation for the steep rise in the number of children recorded as being home educated in England over the past few years is above. I doubt that unregistered schools amount to more than a tiny proportion of it. If these are illegal then the remedy is simple: shut them down. I fail to see the difficulty or why genuine home educators should be penalised and treated as criminal because this is apparently not happening, and I am not the only one who fails to see it. One could almost be forgiven for thinking the illegal schools are being left open deliberately in order to target home education instead of the real problem, which would of course be completely unacceptable.

We could put an equal sign between home education and unregistered schools, as most of them will be in those sorts of schools — and they are pretty grim.

Most home educated children will be in these sorts of schools? And the award for the most baseless sweeping statement for the entire debate goes to Lord Baker for this one. If there are tens of thousands of home educated children and most of them are in illegal schools then that must mean there are about 500 such schools around the country, being allowed to carry on their business unabated. If this is the case, then this is obviously the source of the problem and not the home education regulations. Drastic action must be taken to root out these schools and shut them down, for how have 500 of them been allowed to stay open? I am shocked. I am also puzzled, because hundreds of home educators in my area are known to me if not the local authority, and not a single one of them uses an illegal school, so something has gone wrong with somebody's reckoning somewhere.

I had to close some

Oh, it is possible to close them, then?

and I am sure that the present Secretary of State will be closing some.

Yes please. Local authorities DO have rights of access to inspect such places and should be using this power to investigate and take proper action against them.

Sir Michael went on to say this, which is very important:

“I have previously voiced concern that many of those operating unregistered schools are unscrupulously using the freedoms that parents have to home educate their children as a cover for their activities. They are exploiting weaknesses in the current legislation to operate on the cusp of the law” —

a nice phrase, that.

Although it's open to different interpretations in various places, the law in general is clear. There are no weaknesses in the current legislation, as has been painstakingly and repeatedly explained by myself and many others including Lord Agnew on behalf of the government. If it is reported to local authorities that illegal schools are operating, the schools should be visited, inspected and shut down. If it appears home educators are not providing their children with suitable education and sufficient information to change the appearance is not forthcoming from the home educators, school attendance orders should be issued. If this does not happen, it is not due to a weakness in the law so much as a weakness in the people who are paid to enforce it.

He continued:

“Many are charging parents thousands of pounds to send their children to these unregistered schools. In doing so, many are providing a sub-standard education, placing children at risk and undermining the government’s efforts to ensure that all schools are promoting British values, including tolerance and respect for others”.

Good Lord. Close the schools already!

That series of inspections was very much done in the wake of the Trojan schools issue in Birmingham, where the governing bodies of certain comprehensive schools were trying to turn them into Muslim faith schools. Sir Michael said that that was also happening in home education, so something has to be done.

Sir Michael's letter is here. I do not think it says anything of the sort. What it does say is: "I am particularly concerned about the failure of these local authorities to address the problem of children missing from education and to satisfy themselves that these children are not being exposed to harm, exploitation or the risk of falling under the influence of extremist views," which is hardly the same thing. Home educated children are not missing education - section 437 ensures this - so are not the group referred to in that sentence.

The Bill will set up greater surveillance, which I think would work without eroding a parent’s right to remove.

The meaning of this is obscure. Without eroding a parent's right to remove - their child from school? It seems like our right to deregister is not the focus of this current move against us.

As the noble Lord, Lord Soley, has said, the Bill is capable of being amended but the principle is there.

The principle that some officials seem to be either unwilling to enforce the law or ignorant of the powers they already have within it, or both, is certainly there, though I do not see how this bill, amended or otherwise, can cure the problem.

I do not expect the Minister to say that he will accept the Bill willy-nilly. But I hope he will not say that nothing should be done

Lord Baker will have been pleased to hear he did not: he proposed a public consultation on updated guidelines, which seems to solve the problem of officials not being clear on their duties.

because if we go on as we are, and if one or two really serious cases of the sexual abuse of children who are at home occur, that will blow up under the department — and, I may say, under the Minister as well.

If officers have followed regulations and regulations are as sensible as they currently are, this will not blow up under the department any more than situations of child abuse with pre-school children currently do and considerably less than child abuse in schools. Section 47 of the Children Act protects home educated children in exactly the same way as it protects school children. Neither registration nor regular visits from education officials protect children from abuse, as the case of Eunice Spry clearly demonstrated, which makes home educators wonder about the real motive behind those wishing to mandate the two things for us. I think we need to read no further than Baroness Deech's contribution to the debate to find it, which I will address in a future post in this series.

The line the Government are taking is, “We will wash our hands of it. It is not really part of our job or responsibilities”.

That is not my perception of the government's line. To me it seems perfectly sensible: the current law is sufficient - which, as I've shown, it is. "Local authorities need to be able to act in such cases. We think they already have the tools for the job."

That is totally unacceptable, so I hope that the Minister will be able ​to say that his department will do more work on this. There are three things that we should ask him to consider.

First, he should consider whether to give local authorities the power to see the children and check on them. That is key to safeguarding, probably including talking to the children in the absence of their parents.

"Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable —

(a)to obtain access to him; or

(b)to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,

unless they are satisfied that they already have sufficient information with respect to him.

If regulations demanded such checks on all children, including those about whom no concerns have been expressed, this would:

be prohibitively expensive;

create a 'needle in the haystack' situation, where real abuse became less likely to be noticed and acted upon;

Secondly, he should give local authorities power to enter homes and assess the standards of education. That would be entirely reasonable.

No it would not, for the reasons given in the list above.

Thirdly, he should ensure that some form of inspection is available.

It is available, under section 437 of the Education Act. I imagine members of the Department for Education are as weary of pointing this out as home educators are.

The noble Lord, Lord Soley, has devoted a lot of his active political life to this issue, apart from being the chairman of the Labour Party in the House of Commons, and I wish him well. He has done good service by presenting the Bill and I hope that it will lead to significant changes.

Perhaps the noble Lord, Lord Soley, could devote some of his time in future to familiarising himself with the current regulations before wasting all of our time by bringing bills asking for new ones.

Monday, December 04, 2017

Lord Soley's first contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Lord Soley's initial contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

Overview:

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

Lord Soley (Lab): My Lords, there is a difficult balance to be struck between the rights of parents to have the education for their child that they choose and the rights of the child.

In response to this I can do no better than to directly quote the then Chair of the Home Education Youth Council from a 2009 meeting with a civil servant, Chloe Newby (was Watson), when she said:

"I wanted to say that parents don’t just have a right to educate, they have a duty to educate, and those things are not in conflict. Parents have a duty to educate their children as they see fit according to their age, aptitude and ability and that obviously only the parent can be the judge of that, no-one else can, because the parents know their children best. Therefore, it’s not about between the rights of the parent and the rights of the child, since the rights of the parent are only a byproduct of that responsibility. So they are not in conflict and they don’t really need ‘balancing’, because they weren’t in any way unbalanced, they follow on from one another, and it’s a non-sequitur to suggest that they are opposed, or in any way not concurrent."

Back to Lord Soley:

That is what I have tried to do in this Bill. We need to get that balance right. Let me be quite clear that I have always been in favour of home education.

In which case, he perhaps needs to learn more about it, particularly the damage done to our children's educational provision when it's unnecessarily monitored.

It is a perfectly reasonable choice for a parent to make, as long as they feel equipped to do it and able to accept help if they run into difficulties in any form. One thing that has troubled me for some time is that there is no registration of children out of school in this country—for either children who are not registered for a school in the first place or who are taken out of school and disappear. For reasons that I will explain in a moment, this is becoming a much bigger problem than it used to be. The issue is not whether some parents can do it well. It is about how we help those who cannot do it well and protect the rights of the child.

Some years ago, when I first raised this in a blog on the House of Lords, I was inundated with opposition. I am delighted to tell the House that, on this occasion, the majority of letters, emails and phone calls I get are in favour of the Bill.

This is because most campaigning home educators deem Lord Soley a lost cause in terms of being open to persuasion that he might be wrong and so did not bother to write to him. (When we do write en masse, we are accused of being a vociferous minority, about which, more in future posts in this series as the term did come up, though rather vaguely, there being no obvious grounds for it. It was sort of thrown in for good measure.)

There is recognition now that registration is important. Part of the reason for that, which I will expand on in a moment, is because children are now known to have disappeared and been abused, radicalised or put into extremist situations. We have to deal with that. We cannot ignore it, for the sake of both the child and society as a whole.

In recent years, the increase in home education has been massive and I will give examples of that. I have had help from across the board, but two of the councils that have been most helpful to me on this are Hampshire and Kent. They have given me information that I hope that the Government will see in due course. I should say in passing that these are Conservative-controlled councils, but this issue goes across the board and is not party-political.

Regulations should be the right ones on principle, for a few amount of children as much as for a large amount.

The problem is throughout the United Kingdom, although the Bill applies only to England and Wales because in Scotland education is a devolved responsibility.

Problem? Home education is usually a solution for the child and very far from being a problem. Problem for whom, I wonder?

As I said, the expansion in home education has been considerable. Let me quote from the House of Commons report on home education. For those who have copies, I will read from page 2, which says:

“In July 2014 local authorities in England recorded 27,292 home educated children. The figure for July 2013 was 23,243. Overall, the number of home educated children increased across the country by 17% between July 2013 and July 2014”.

It then goes into further detail for those who want to pursue it.

The other report that I thought significant comes from Kent County Council, which, as I have indicated, has been very helpful with its information. It says:

“There were 1,203 new registrations during the 2016-17 academic year, which was an increase of 17.1% on 2015-16. That is just one year”.

Importantly, because this indicates where some of the problems are,

“1,003 registrations were closed during 2016-17 academic year”,

which Kent says demonstrates the numbers transferring in and out of home education status. It is in a constant state of flux, causing significant disruption to children’s ​education and to the school. In other words, the child is taken out for a period and then goes back in, which is disruptive for both child and school. Kent goes on to say that it believes some of this is because of parents using it to avoid school attendance orders and associated fines.

I can see how this might make life difficult for some Kent schools, but I fail to see why the education provision of home educated children should be damaged to make things easier for schools. One of the main reasons for home educating is to prioritise one's own child's provision. Home educating parents cannot subject themselves to monitoring in order to prevent the disruption for schools, even if the link was not as tenuous as it appears to be.

The numbers have increased dramatically. Hampshire, which, as I have indicated, took the initiative by contacting me after seeing my Bill, currently has 1,422 children registered as home educated, and those are only the ones that they know about. That number has tripled over the past five years. Again, that is common across the country. Incidentally, the BBC did a survey through local authorities and found that 32,262 were missing from school for substantial periods. Even more worrying, and I will come back to this, 3,987 could not be traced at all. That is where we have a very serious problem, which we are not facing up to.

I was pleased when David Cameron’s Government considered including an inspection for out-of-school settings.

Yes. Would this not solve the supposed problem?

But my Bill deals with a different part of that problem, which is the issue of parents who do not register their child for school at all; therefore, we have no idea where they are or what is happening to them.

But people do know where they are and what is happening to them. Their parents do, for a start, which is the most important thing. Then there are doctors, dentists, shop assistants, other parents, neighbours, extended family members, activity leaders and so on. The number of times this has not been the case in situations that have ended in Serious Case Reviews can be counted on one finger.

There seems to be some cloudy thinking about who has responsibility for the safety and wellbeing of children about whom no concerns have been raised and no concerns noticed. Statute compels officials to take action if they notice a problem but if they do not, it is to be assumed that all is well within the family. This is to preserve both the resources of the state, focusing these on the children who actually need them, and the vital privacy of the family, which is set out in Article 8 of the Human Rights Act.

Then there are those who are taken out during the course of the school year and then go back in.

Some children also change schools as their families move around the country - even around several countries. Is this freedom too to be legislated against? It is surely equally disruptive to the educational establishments concerned.

I have not had a great deal of involvement in education and I do not claim that much knowledge of it, but one reason why I got involved with this issue goes way back in my own past, to many years ago when I was a probation officer. I knew then that the parents of children who took them out of school seeking to abuse them knew that they could hide the child.

Anyone could hide or abuse a child. Anyone could do anything: one of the hallmarks of a civilised society though is the presumption of innocence. This means that just because a person could do something, we must not assume in the absence of any other indicators, that they might be doing it.

I must stress that, because sometimes we see such cases in the paper and we think that the parents look hopeless and incapable. That is often true, but it is also true that parents who abuse children, either sexually or physically, are very often clever, intelligent and incredibly manipulative. Social workers, psychiatrists, probation officers or anyone else dealing with such parents have to be very hard-headed and clear-sighted because it is so easy to fall into the trap of thinking that everything is all right and that the black eye came from the kid falling down the stairs or something of that nature. We cannot afford to do that.

I fail to see what this has to do with home education. It has been shown that home educated children have statistically less chance of being abused than the school-attending population, so why this old chestnut again? At the risk of being repetitive, we already have sections 17 and 47 of the Children Act for those very few cases there are, and home educators are just as subject to these laws as anyone else.

That is one reason why I have always been troubled that in this country, almost alone among the developed countries, we do not register children.

But we doregisterchildren in this country. We know when they're born, we know when they're ill and we know the address that their child benefit is paid to. But they are children of their parents and not the state so collectively, it's none of our business to know where they are educated - if there are no specific reasons to suspect these arrangements might not be suitable.

Very importantly, we also do not offer much help to those who home educate but need help to do it well. We just leave them to it.

The state offers school. If this offer is declined, parents are free to make other arrangements. Schools should meet children's needs. If this doesn't happen, there is supposedly a process of recourse for parents. If this system is not working, then surely it is what needs the attention of politicians and not the currently adequate and finely balanced home education regulations.

Countries such as the United States, Canada and Australia not only have a system of registration, which obviously varies from state to state, but also offer great help. That is necessary if you are in a very large geographical area where home education is often the only alternative to boarding. As I say, these countries recognise the need both to register and to provide help. We do not do either.

Not only do we not recognise the need for registration - we actively campaign against it, with good reason.

In a moment I shall go through the Bill, but perhaps I may make a final point. When I saw the Minister the other day I referred to two cases which are just the tip of the iceberg. One concerned a child in south Wales named Dylan Seabridge who was taken out of school. He was not known to any other local authority ​or organisation. The next thing that was known about him was some years later, when a 999 call was made. The child was taken to hospital but it was too late and he died. He had been starved to death.

Would that be Khyra Ishaq? Also someone about whom concerns were expressed to authorities and sufficient action not taken.

Today, interestingly, I learned from a very reputable source, a local authority officer, about a child who was taken out of school at the age of about eight. He disappeared and nothing was heard any more until some months later when that child, along with his baby brother and his mother, were found buried in the garden of the house. No one knew where that child had gone. He was taken out of school, he disappeared, and then he was found dead.

The Government have been very good about issues like children being taken into slavery or those at risk of sexual abuse and so on, but unless we know what happens to children who are taken out of school and disappear or who are not registered for school, we are not doing our duty towards the rights of the child. That is why this is important.

I do wish Lord Soley would be legally precise in his sweeping statements, and better informed. The state's duties are well set out in law and - when carried out correctly - work perfectly well. If Lord Soley wishes to improve this situation, perhaps he could campaign for better training for officials? Lord Agnew's promise of clearer guidance is another good solution to this supposed problem being incorrectly laid at the door of home education yet again.

As I say, the Bill tries to strike a delicate balance between the rights of parents and the rights of the child.

The bill is about as delicate as a sledgehammer being used to crack a non-existent nut. Also, though I yawn to have to explain it again, this belligerent setting of parents' rights against those of their children is at best a misunderstanding of the situation and at worst, a clumsy attempt to interject yet more powers of state into people's peaceful family lives.

I want to say straightaway that I will table certain amendments. Those who have read the Bill carefully will know that two phrases that will trouble people are the requirements to check on a child’s physical and emotional development. I put them in in the first instance precisely because of my worry about the minority of abuse cases. However, having thought about it for a week or so, it is clear that that is unrealistic. I will seek to amend the Bill to take those words out of the Long Title and subsections (1) and (4) of the proposed new section in Clause 1(2).

Wow, that was a bit sudden. Apropos of nothing? We have deliberately not targetted a letter campaign at Lord Soley and his chums because they have proved to be so entrenched in their views that there seemed to be little point in so doing. And yet, after justifying this bill on supposedly generalised health and wellbeing concerns, these are now magically no longer a problem? As a rationale, it is not hanging together very well at all.

What I really want is a system where the majority of parents who home educate very well and want to be left alone are not caused any hassle by the Bill. We need to let them get on with it.

That would be the other amendment I might possibly have to table, apart from others that may be suggested by the Government or elsewhere.

Lord Soley curiously seems to think people are interested in amending his bill, rather than rejecting it outright.

If parents are subject to one inspection and the local authority feels that everything is going well, there is no reason why that should ultimately become an annual inspection. However, if parents either need help or are asking for help, or if the local authority is worried about the welfare or education of the child, inspections might need to be carried out more frequently.

This is not an improvement in the current system, but quite the opposite and nor is it in keeping with the spirit of the law. If local authorities have specific welfare concerns about a child, these should be addressed by trained social workers under sections 17 or 47 of the Children Act. They should not be fudged by education officers untrained in welfare issues. If the local authority is worried about the educational provision for specific reasons, these should be addressed first by informal and then formal enquiries, as per Section 437. Does his bill seek to replace section 437? If not, how would it work to have two sections of the same act giving contrary instructions to local authorities?

The wording I include in proposed new Section 436B(3) in Clause 1(2) would ensure that there is a minimum of one inspection per annum and that it would continue normally thereafter. Again, I emphasise that the majority of parents who take their children out of school are committed to educating them well.

Lord Soley seems already to have all knowledge of home educators already at his fingertips, if he knows for sure that the majority of parents who take their children out of school are committed to educating them well. I am curious to know how he has come by this information, but perhaps we should just ascribe him with superpowers and let the matter rest there. Such an eminent man could not possibly be assuming knowledge he does not have - that would be supremely ironic in the context of him proposing more information-gathering about home educators.

However, there is a second group of parents — I suspect that they might form the largest group — who may want to educate their children well, but they struggle. That may be because they do not have access to all the facilities they need or because their circumstances change, such as perhaps taking on a more demanding job or something of that nature.

He has no superpowers: this is complete guesswork and speculation. Attempting to make new laws on the basis of fantasy fiction and fabrication.

What often happens at the moment is that these children are taken out of school and then put back in again a year or so later. That is very disruptive both for the child and the school. ​Another issue has been pointed out to me by a representative of Kent County Council; it is something that I did not know about. There is considerable evidence to suggest that children are taken out of school to avoid attendance orders and fines. I think that the Minister ought to look at the authorities that are reporting this problem. I have been told that taking children out of school to avoid fines is a major cause of this issue for local authorities. Again, this goes across the board politically.

I would contend that the problem here is the fines. I did not know that children who are already registered at schools could be subject to school attendance orders, but quit the draconian punishments and develop a more sympathetic system and then fewer people might want to take steps to avoid its unpleasant consequences. Are they schools, or day prisons? Places of learning, or of compulsory confinement? Home educators could explain that learning is much more optimal when it is not forced.

The Bill is straightforward in most senses. It seeks to amend the Education Act 1996 in such a way that there is a requirement on local authorities to register. Once we start registering, we can then start to help, advise, direct and protect. The trick here is to get that balance right.

He is right to call it a trick. It would be mere, "helpful" registration only one year, and full-on Badman recommendations the next. Other speakers in this debate made clear their animosity to their very existence of home education, so we have no reason to trust that this is not the end-goal of this slippery slope, paved with apparent good intentions.

I want to work closely on this with the various education bodies, with the Government, in particular, and with local authorities to make sure that we do it well.

But not with home educators? Is it none of our business?

I know people will say, “Well, at the moment, local authorities haven’t got the resources and can’t do it themselves”, but if we look at the numbers I gave earlier and bear in mind the problems of abuse, radicalisation and extremism, we cannot ignore this any longer.

It is not ignored. There is no problem. The current regulations are perfectly adequate.

On radicalisation alone, I would simply say that as more cases come to light, as they are, media interest in and public pressure on this issue will grow. It is no accident that 10 or 15 years ago, I faced more opposition than support to what I was saying; now, I get more support than opposition.

That is what is usually called being in an echo chamber.

Interestingly, some of the letters I have received were from people who wrote to me 10 or 15 years ago and who are now saying, “I got it wrong. I think we have to have this, but please do it in a way that doesn’t put too much pressure on me, because I am doing it okay”. I understand that and I want to achieve it.

I do not believe there have been more than one or two such letters. If Lord Soley wants us to believe there were more, he should anonymise and then publish the letters. I have not known any home educators express any sentiment in support of his bill, and I am connected with many home educators both online and off. Most people are very much against it but have not bothered to write to him to say so, as his views seem so entrenched.

New Section 436B would put the duty on the local authority to monitor children receiving elective home education. As I have indicated, in Committee I will try to delete “the physical and emotional development of children”. I do not think that anybody will object; I think the penny will drop that we could not monitor that, as it did with me when I drafted the Bill in the first instance.

Something is not quite right about this. Is Lord Soley drafting bills on a whim, to be immediately changed on another whim? It sounds like this is what he would have us believe. It is most disconcerting to see the possibility for actual laws to be made in this casual and ill-informed way.

I think also that those words troubled the people who are doing home education well; many of them wrote to me saying that I am Mao Tse-Tung in drag, trying to impose state control on all these people.

Really? Many of them wrote to say that exact thing? Or is this a casually sweeping metaphor, aimed at undermining and diluting people's valid and real concerns?

Let me reassure this House and people outside that I am not Mao Tse-Tung in drag. I want a light-touch regulation for people who are doing home education well and I want to help those who are not. I also want to protect those children who are at serious risk.

We already have light touch regulation for home education. Those who really are not doing it well should be issued with school attendance orders after the informal and formal processes have been exhausted. EOTAS (the system of leaving a child on-roll but not attending school because there is no school to meet their needs, so the local authority has to fund the provision) exists for those children who cannot attend school, but whose parents cannot home educate them. Sections 17 and 47 of the Children Act already do protect those children who are at serious risk. As Lord Agnew later said in this debate, local authorities already do have the tools they need.

My proposed new Section 436B then lists the duty of the local authority to monitor children. New subsection (2) is, in a way, the key one, because it requires registration; it brings the issue into the modern world, where we register it.

Registration is not modern. It could actually be seen as archaic, when one looks for example at the requirement for everyone to carry papers in WWII which was then relaxed in peacetime. The truly modern approach is the mature and sensible one, which trusts people to be innocent until proven guilty and does not track, register and assess them just in case they might commit a crime.

New subsection (3) covers the issue of whether the assessment will be annually, or more than annually; as I say, the key there is to allow it to be done annually for people doing home education well. We may even move to a situation where, because everybody is certified, we take that provision out altogether.

So we're not only registered, we are now also to be certified? The reason I am addressing the debate word by word in this way is because very often the clues as to the real plans behind such proposals leak out in throw-away words such as these. There is a huge difference between registration and certification. The one is simply a process of adding names to a list (which is happening anyway as a result of section 436A) and the other includes a process of approval - and its opposite, disapproval. An active judging of the provision before it has taken place, and permission to continue approved or denied. Very like the Badman recommendations in fact. His use of the word 'certified' in this context gives us a clear indication of the real intention behind this bill.

We must have a minimum of annual assessments in order to allow other assessments ​to take place when we are worried about a child or the quality of the education, and so on.

This point in particular completely ignores section 437 of the Education Act. Information about the provision is to be sought if the local authority has concerns that it might not be suitable. It is not to be sought anyway, whether or not there are concerns. Where it is sought and concerns not allayed, more information is to be sought as per the informal process set out in EHEGLA and if concerns are still not allayed then the formal process set out in section 437 is to be carried out. This system is already in place and does the job without intervening unnecessarily into private family life.

Obviously, we are concerned about the quality of education on the basics of reading, writing and numeracy, as the previous Minister and Government were, because many children — particularly those who are taken out of school and then put back in, to avoid fines and attendance orders — would be left in a very vulnerable situation.

But this is the concern of nobody except the family, unless the local authority is alerted to the situation in which case, the informal and formal inquiries address it adequately. The law correctly assumes that it is in parents' interests and motivation for their children to be educated.

Clause 2 will give various powers to the Secretary of State to make regulations by statutory instrument if necessary. I have tried to phrase this in a way that enables the Secretary of State to consult widely and issue guidance, as and when necessary. That is a fairly normal procedure, which I happen to think will be quite important in this area. Guidance relating to elective home education — covered by Clause 2 — is important because it requires that the updating of guidance by the Secretary of State must have regard to elective home education providing instruction in writing and numeracy, and take into account the child’s age, aptitude, ability and any special educational needs.

But the law and the guidance already does this.

That is because in the present situation, there is troubling evidence — I am afraid that I cannot put a number on it at this stage — that children are taken out of school because the parent feels, often rightly, that the required special educational needs are not being met by the local authority and that they can do a better job with the child out of school.

A common and valid reason for home educating. In fact, a parent's reason for home educating bears no relation to their ability to provide a suitable education and is therefore correctly seen as irrelevant.

Those parents need help.

This sweeping statement is pure guesswork. And why does Lord Soley seem to think that the parents in question are unable to source any help they may need? Some families need to be left alone by professionals while the children recover from the damage done to them in schools.

It is a matter of saying not that they have to put the child back into school, but that a child with special educational needs will need additional attention. The clause would give the Secretary of State the ability to offer guidance and, in Clause 2(2)(b), to take into account the views of children and parents.

EHC plans can still be put in placed for home educated children. Parents can and do negotiate for these, often with the help of their local authorites. Proposals to make this process easier for parents might be appreciated, but this does not require the compulsory registration (or certification) of every home educating family. To suggest it does is to raise a straw man argument. New guidance could require every local authority to supply deregistering parents with information about how to apply for an EHP plan and list the assistance available for them to do so, for example. The law does not need to be changed for this to happen.

As an aside related to that, we need to commission some research into this area. I hope the Government can do something about it fairly soon. We have no idea of numbers or, as I have indicated, how many children who were taken into home education have ended up in situations of abuse or being killed. Those figures should be available. I know that in the Welsh case, for example, it was stated in the court case afterwards, and it will have been stated in other cases where children have been killed, but it will also have been stated in cases where the police have been involved and the child had been put into situations where they had been radicalised or exposed to extremism. We ought to be able to get those figures. If the Minister does nothing else, I ask him to take that away in the near future and try to get some research done. It is very important.

The NSPCC produced some 'research', which we successfully refuted. I assume Lord Soley knows about this: it's very strange that he does not mention it.

The interpretation of the Bill is the usual straight-forward thing. Clause 4 goes on to say that it applies only to England and Wales. I stress that I have already drawn this to the attention of the Scottish education authority because I know it has a similar problem. I have looked at some of the numbers in Scotland. They too have a problem, but it is essentially an issue for the devolved Administration. I will forward it to them.

I've yet to see this English government referring to home education as a 'problem'. Perhaps Lord Soley imagines that his repetition of this word might make it seem more true.

What I want to do more than anything else is work with the Government and any other bodies concerned about this. I do not pretend that I have got the Bill exactly right. I want to make changes in Committee, but I would be very happy to make changes put ​forward by other people to achieve this end. At the very least we need registration, with some understanding of what is happening to these children who disappear. We cannot go on with the situation where we have thousands who disappear.

We do not have thousands of children who "disappear". We have thousands of children who are not registered with their local authorities as being home educated because they have not been deregistered from a school, or come to the local authority's attention as set out in sections 436A or 437 of the Education Act. They have not "disappeared": in terms of a home education register, they simply have not "appeared". If they were formerly known to a local authority they usually still are. If they are not known then no news is not bad news. If they are known and concerns are not acted upon, then this is the fault of local authority officers not properly using the powers available to them. All of this is clearly apparent in the NSPCC report of three years ago.

I hope the Government will work with me. I understand that the Minister is very new to his job and I want to be very cautious today, but I ask him to look at this very carefully. Several disasters have already happened and we know there are more in the pipeline.

I am yet to hear of one about which the authorities did not know, which compulsory registration (or certification) of home educators would have prevented.

It does not do anyone any good to turn a blind eye to this. It is time for us to act.

Nobody is turning a blind eye. There is no preventative action which could be taken that is not already allowed for in the current regulations on home education.

I therefore beg to move the Bill and I will work in co-operation with all who would like to do so.